Summary: There is no fault by the Council leading up to its decision not to take enforcement action over concrete footings. Complaints about applications to convert a barn into houses have not been investigated as one permission cannot be implemented and the other has been refused, so cause no injustice.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains about the Council’s response to his neighbours applications for permission to convert an agricultural barn into a house.
2. Mr B also complains the Council has failed to take enforcement action over unauthorised works to the barn.

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What I have investigated

3. I have investigated Mr B’s complaint that the Council has failed to take enforcement action over unauthorised works to an agricultural barn. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I read the papers put in by Mr B and discussed the complaint with him.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. I gave the Council and Mr B the opportunity to comment on my draft decision.

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What I found

Key facts

10. Mr B lives next door to a property, containing several houses and buildings, including an agricultural barn.
11. The Council granted consent for the neighbour to convert the barn to houses under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development Order 2015), which I shall refer to as the prior approval application.
12. The neighbour started work on the barn. After complaints from Mr B, the Council decided that the works to the building exceeded that in the schedule of works and it was no longer possible to legally implement the proposal. The Council advised the applicant to stop work and apply for planning permission.
13. The neighbour put in application for planning permission, which the Council refused on 2 April 2019.
14. Mr B complained to the Council in April 2019 about the works that his neighbour had carried out to the barn without consent.
15. The Council’s head of planning replied on 29 April 2019. The head of planning said that some of the works were not development, such as the removal of external cladding and blockwork and the removal of the concrete floor slab and internal party walls. So, the Council could not take any action on these points.
16. The head of planning said the new concrete foundations did constitute development. However, the Council did not consider it expedient to take enforcement action. This was because of the amount of work that had been carried out, the limited harm to the openness of the green belt, the impact on visual and residential amenity and fall back position available to the owners if the building remained in agricultural use.
17. Since the Council’s reply Mr B has said there has been a delivery of hardcore to the site.

My analysis

18. Mr B has asked that several complaints about the Council’s actions be investigated. In his original complaint letter he mentioned several complaints about the prior approval application. Mr B said that the Council failed to follow the law, that the plan measurements were inaccurate, that there was procedural irregularity and the breach of planning control was reasonably foreseeable. As the prior approval application cannot now be legally implemented I do not intend to investigate these points, as they do not cause Mr B an injustice.

Unauthorised works prior to planning application submission

19. Mr B says there was delay and the Council failed to investigate and take action in response to his complaints that the works to the barn were greater than allowed under the prior approval permission.
20. I understand Mr B feels the Council should have taken more notice of his worries before the works to the barn had started. But, the Council could not start to investigate or take action until a breach of planning control occurred.
21. Where a breach involves carrying out development without permission councils have a choice of different enforcement options to secure a satisfactory remedy for a breach of control. It is for the planning authority to decide whether it is expedient to take action. The planning authority may invite a retrospective application to regularise development which has already been undertaken.
22. In response to Mr B’s complaints the Council visited the site and advised the neighbour to stop work and put in a planning application for the unauthorised works. The Council refused this planning application and then the Council revisited. I can see no evidence of delay by the Council.

Unauthorised Concrete footings

23. Mr B disagrees with the Council’s recent decision not to take enforcement action over the concrete footings and I understand that he has concerns about what may happen to the site in future.
24. The Council has said, in its response to my enquires, that ‘the applicant would be within their rights to carry out certain repair works that do not constitute development and therefore do not need planning permission. However, the Council thinks the structure no longer constitutes a building and therefore should the applicant carry out ‘repairs’ with the intention of putting in a further prior approval application, the resultant structure would not comply with this legislation.’
25. I can find no fault in the Council’s response to Mr B’s complaint about the recent changes to the neighbours barn, some of which the Council agrees are unauthorised. The Council has visited the site, considered Mr B’s views and the legislation and decided that it is not expedient to take enforcement action over the concrete footings now. This is a decision the Council is entitled to take and one which it took without fault. However, I do note that matters are still ongoing. I have noted Mr B’s concerns about the Council’s lack of enforcement procedures and I shall ask the Council to consider whether a formal policy is appropriate. But, I do not consider the lack of a formal policy has changed the result here.

Giving misleading information and failure to reply to correspondence

26. Mr B has said that when he complained to the Council, about the decision on the prior approval application in August 2018, the Council told him there was no third party of appeal and advised to contact his MP if he was unhappy with the process, rather than follow the Council’s complaints procedure. Mr B said the Council’s chief Executive did not reply to further letters and the MP advised him to contact the Ombudsman.
27. I have looked at the email Mr B sent on 30 August. He said ‘would you please advise me of the procedure used to appeal or object to a prior approval decision made under delegated powers’.
28. The Council officer replied ‘there is no third party right of appeal on a prior approval application’. I consider this information is correct. The officer also said if Mr B was unhappy with this process, he could contact his MP.
29. Mr B then wrote to the Council’s Chief Executive on 21 September. Mr B also wrote to his MP on 25 September who contacted the Council. The Chief Executive replied on 28 September and the MP sent this to Mr B on 1 October, with contact details for the Ombudsman if he remained dissatisfied.
30. If Mr B was trying to make a complaint, ideally the officer would have told him of the complaints process, with the MP details. But, Mr B’s first email did not directly seek details of the complaints process. So, I do not consider it was wrong for the officer to give Mr B details of his MP to whom he could complain to about the lack of a third party right of appeal. So, I do not consider the Council gave misleading information, it gave Mr B the information he sought. Details of the complaints process are available on the Council’s website, so were available to Mr B.
31. Mr B complains the Council’s Chief Executive did not reply to his letter of 21 September and 30 September. The Chief Executive responded to the letter of 21 September to the MP, not directly to Mr B. While the Council could have sent a copy directly to Mr B as well as the MP, I do not consider the Council needed to reply twice to the same letter. With regard to Mr B’s letter of 30 September to the Chief Executive, this crossed in the post with the Council’s reply to the MP. So, I am not certain the Chief Executive would have felt the need to reply on the same issues. I do not consider this fault, but I will bring the matter to the Council’s attention, to ensure that correspondence is dealt with in the correct way.

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Final decision

32. I have completed my investigation of this complaint. This complaint is not upheld.

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Parts of the complaint that I did not investigate

33. I have not investigated Mr B's complaint about the prior approval application, as the Council has said that this cannot be legally implemented now and so this does not cause injustice to Mr B. I have not also investigated the recent planning application, as the Council refused it and so it does not cause any injustice to Mr B as no permission has been given for the development to go ahead.

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Investigator's decision on behalf of the Ombudsman